What is jurisdiction?
Jurisdiction can be understood as the manifestation of the power and duty of a State to solve conflicts and to impose its decisions in order to promote social peace. In the international context, the jurisdiction would be based on criteria of disputes’ distribution among States, that, once uniform and universal, distinguish which causes each state would be able to judge. In the domestic context, the State exercises its jurisdiction when, through their domestic courts, enjoy the disputes submitted to it and applies domestic legislation.
Understanding rules of connection
The connection rules are criteria to establish the link between a situation of life and the standard that disciplines it. The connection elements reveal the legal seat of a specific case and define the application of the law in force in this place. Reflect, in this way, the intersection between the definition of a State jurisdiction to resolve the deal and the law applicable to it. Examples of connection elements:
- Lex patriae: refers to nationality of natural person;
- Lex loci actus: related with the place of legal act realization;
- Lex dami: related with the local where the effects from illegal acts were felt.
Why is the Internet a challenge to jurisdiction?
Cross-border Internet environment leads to cases connected to different legal systems. The Internet proves to be a problem for traditional connection rules because they are, mainly, based on territoriality. Thus, each State rules what happens in its territory, limiting the exercise of its jurisdiction to a particular geographic area, which is extrapolated by the Internet.
Transnational relations resulting from globalization and driven by the Internet provide contact – and conflict – between different regions, legal systems and cultures. In this context, there is a lack of criteria to state jurisdiction definition for cases that have as background the cyberspace and, therefore, connect, in different ways, to more than one state jurisdiction.
The definition of State’s jurisdiction over relations established on the Internet involves the areas of e-commerce, taxation, intellectual property, international crimes and human rights, among others. In this way, they reach various nuances of society and the regulation that Law proposes to it. Despite its major impact, legislative policies are still scarce and, in practice, the “traditional” criteria to connection have been adapted by the courts to resolve arising disputes.
In addition to the delay of jurisdiction’s principles definition in the face of contemporary needs of States, individuals and companies operating in the international arena, there are problems of domestic decisions’ enforcement abroad – which depends on truncated mechanisms of international cooperation or are based on reciprocity – and of access to justice by parties involved in cross-border disputes, accentuated by the imbalance between them.
About the author:
Researcher at the Institute for Research on Internet & Society. Undergraduate Law Student at the Federal University of Minas Gerais (UFMG). Coordinator of the Study Group on Internet, Innovation and Intellectual Property (GNET). Interested on topics such as Private International Law, Internet Law, Innovation Law and International Intellectual Property Law.